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Counter-Terrorism Legislation and Practice:

A Survey of Selected Countries

Introduction

The events of July 2005 brought into focus the need for this country to properly

equip itself against the threat from terrorism. The Government has over the

summer been assessing the practical and legislative steps needed to build on the

counter terrorism measures already in place. The Government is consulting widely

on the measures that are now proposed. This research paper is intended to inform

that process, by providing background information on the approaches taken in a

selection of other countries.

Different countries, with differing political and legal traditions and systems,

recognising the particular threat posed by terrorism, have enacted a variety ofmeasures to counter that threat. Approaches have varied and evolved over time in

the face of a changing threat and changing terrorist tactics. This paper is a survey

of such measures in a number of democratic countries from Western Europe,

North America and Australasia. In compiling the paper our Research Analysts

and officials have consulted with independent lawyers and/or national

governments. But this paper does not constitute formal legal advice, and should

not be taken as such. Rather, it sets out some of the key elements of these

countries' legislation and practice. It is illustrative rather than exhaustive. It does

not seek to comment on their legislation or to draw conclusions. It focuses on the

main provisions of counter-terrorism related law, not on every statute (for

example, weapons offences, or laws against identity fraud or money laundering)

that may apply in individual terrorist-related investigations. The paper is the start

of a consultative process that can be developed and supplemented in the future. It

describes the situation in mid-2005, not the plans for further measures that a

number of countries have indicated they may introduce.

Secretary of State

for Foreign and Commonwealth Affairs

October 2005


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Contents

Australia 3

Canada 6

France 9

Germany 12

Greece 15

Italy 18

Norway 22

Spain 25

Sweden 30

United States of America 33

Glossary 37


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AUSTRALIA

1. Australia is a federation of States, each of which has its own constitution,

government and laws. The legislative power of the Commonwealth of Australia is

held by the federal Parliament which can make laws only on certain matters,

including foreign affairs, defence, immigration, taxation, banking, insurance. TheStates retain legislative powers over local government, roads, hospitals and

schools, and matters not specifically listed in the constitution. In cases of conflict

in areas where the Commonwealth and States have concurrent powers to make

laws, Commonwealth law has priority and the State law is invalid to the extent of

the inconsistency.

2. The Australian Criminal Code Act 1995(the Criminal Code), as amended by the

Security Legislation Amendment (Terrorism) Act 2002, defines a terrorist act as:

an action or threat of action that causes serious physical harm or death to a

person, or endangers a persons life or involves serious risk to public

health or safety, serious damage to property or serious interference withessential electronic systems; and

the action is done or threat is made with the intention of advancing a

political, religious or ideological cause and to coerce or influence by

intimidation an Australian or foreign government or intimidate the public

or a section of the public.

3. Since 2002, the Australian Government has introduced comprehensive terrorism

laws. It is an offence to commit a terrorist act, be a member of a terrorist

organisation, provide or receive training connected with terrorist acts, associate

with a terrorist organisation, support or plan a terrorist act, and receive funds fromor make funds available, to a terrorist organisation. All offences attract substantial

penalties, some of them up to life imprisonment.

4. The Criminal Code defines a terrorist organisation as an organisation that is

directly or indirectly engaged in, preparing, planning, assisting in or fostering the

doing of a terrorist act (whether or not the terrorist act occurs) or an organisation

that is specified by the regulations. Before an organisation is specified in the

Regulations the Attorney-General must be satisfied on reasonable grounds that the

organisation is engaged in, preparing, planning, assisting in or fostering the doing

of a terrorist act (whether or not the terrorist act has occurred or will occur).

Regulations listing terrorist organisations have effect for two years after theircommencement.

5. In the event that another country is unable or unwilling to lay appropriate charges,

criminal charges can be brought against individuals who committed terrorist

offences (as defined by Australian legislation) overseas.

6. If an individual is arrested under suspicion of involvement in terrorism, they can

be held for questioning for an initial period of four hours. This period can be

increased to 24 hours by application to a magistrate, after which suspects are

either charged or released.


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7. The Australian Security Intelligence Organisation Act 1979gives ASIO the power

to seek a warrant to question, and in limited circumstances detain, a person who

may have information relating to a terrorism offence. ASIO may question a person

for up to a total of 24 hours (48 hours if an interpreter is used) and, if permitted by

the warrant, the person may be detained for up to 168 hours. Warrants are issued

by a federal judge or a Federal Magistrate. A person with judicial experiencesupervises questioning. Safeguards exist, including a person's right to have a

lawyer present, and the right to make a complaint to the Inspector General of

Intelligence and Security and to seek a remedy in a federal court at any time.

8. Australian use of "advance passenger processing" means that no one can board a

flight to Australia unless already cleared for landing. As such, Australia deports

only around 100-200 individuals per year. In recent years Australia has also

increased its presence at key international airports and is at the forefront of

international research on biometrics technology to detect identity fraud,

quarantine technologies to enhance the screening of goods, and more effective

disease surveillance systems for preventing bio-terrorism.

9. Australia permits dual nationality. Australian nationality can only be removed if

it was fraudulently obtained as a result of either migration fraud or citizenship

fraud or if the person is a dual national and is convicted after becoming an

Australian citizen of a serious criminal offence committed before their citizenship

application was approved.

10. Decisions to cancel or refuse a visa are taken by, or under the authority of, the

Minister for Immigration and Multicultural and Indigenous Affairs. This could be

on the basis of an assessment of ASIO, or a determination by the Foreign

Minister, in which case the visa must be cancelled or refused. The decision may

also be based on a range of information provided to the Immigration Department,

in which case the decision-maker will have some discretion. If officials take the

decision, it is subject to appeal at an appeals tribunal; if the Minister takes the

decision there is no appeal to the tribunal. Each decision is subject to judicial

review and may be examined by an Ombudsman or, in the case of a security

assessment by ASIO, to the Inspector General of Intelligence and Security.

11. In addition, to human rights protections provided for by the Australian

constitution, domestic legislation and the case law of the courts, Australia has

ratified the International Covenant of Civil and Political Rights 1966 (ICCPR) andthe Convention Against Torture and Other Cruel, Inhuman and Degrading

Treatment or Punishment 1984 (CAT). When removing individuals, Australia

seeks assurances from the government in question where appropriate. If it is

unable to obtain such assurances, Australia will not remove the individual.


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Australia proscribes the following groups:

Abu Sayyaf Group

Al Qaida

Al Qaida in Iraq

Ansar al-IslamArmed Islamic Group

Asbat al-Ansar

Egyptian Islamic Movement

Hamas Izz al-Din al-Qassam Brigades

Hizballah External Security Organisation

Islamic Army of Aden

Islamic Movement of Uzbekistan

Jaish e-Mohammed

Jamiat ul-Ansar

Jemaah Islamiyah

Lashkar i Jhangvi

Lashkar-e-Tayyiba

Palestinian Islamic Jihad

Salafist Group for Call and Combat


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CANADA

12. The federal government has exclusive law-making powers over criminal law and

criminal procedure. The provincial governments are given jurisdiction over "the

administration of justice" in the provinces, which includes "the constitution,

organisation and maintenance" of the courts, both civil and criminal, in the

province, as well as civil procedure in those courts. The Constitution Act of 1982

incorporates the Canadian Charter of Rights and Freedoms, a constitutionally

entrenched bill of rights which defines the fundamental freedoms and other rights

of Canadians. Canadian domestic laws are intended to be interpreted in

accordance with Canadas international commitments.

13. The Criminal Code, as amended by the Anti Terrorism Act 2001 (ATA), defines

terrorism as an action that takes place either within or outside of Canada which is

an offence under the United Nations (UN) Conventions and Protocols; or is

committed or threatened for political, religious or ideological purposes andintended to intimidate the public or compel a government to do or refrain from

doing an act by killing, seriously harming or endangering a person, causing

substantial property damage that is likely to seriously harm people or by

interfering with or disrupting an essential service, facility or system. Under the

ATA, a terrorist group is defined as an entity that has as one of its purposes or

activities the facilitating or carrying out of terrorist activity or that is an entity set

out in a list established by regulation. Being on the list does not itself constitute a

criminal offence, although it can lead to criminal consequences. Where offences

are charged, each of the elements would have to be proved beyond a reasonable

doubt. The list supports the application of other provisions in the Act including:

terrorism offences; crimes relating to the financing of terrorism; requirements tofreeze terrorist property and procedures for the courts to order seizure and

forfeiture of that property; and the removal or denial of the charitable status of

organisations that engage in or support terrorism.

14. Thirty-eight entities have been proscribed under the various provisions of the

Criminal Code. These include organisations such as al-Qaida, Hizbullah, Aum

Shinri Kyo and Sendero Luminoso. The list continues to be updated. Decisions

on listing are made by Ministers in Special Committee. In order to be designated,

it must be determined that the entity has knowingly carried out, attempted to carry

out, participated in or facilitated a terrorist activity or knowingly acting on behalf

of, at the direction of or in association with such an entity. Canada alsoimplements its international obligations through other domestic measures such as

the UN Suppression of Terrorism Regulations.

15. The ATA enacted or amended a number of other federal statutes, including the

Security of Information Act, the Canada Evidence Act, the Proceeds of Crime

(Money Laundering) and Terrorist Financing Act, the Charities Registration Act

and the National Defence Act. The ATA is complemented by the Public Safety

Act 2002 (which enhances the security environment for air travellers) and the

Immigration and Refugee Protection Act (IRPA).

16. Those accused of terrorism-related offences have the same substantive andprocedural rights as any other criminal accused in Canada, including the


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presumption of innocence, equality before the law and trial by an independent and

impartial tribunal. The burden of the State to prove its case beyond a reasonable

doubt applies to every essential element of a criminal case. The ATA contains

provisions that relate to both reconnaissance with conditions and investigative

hearings. At an investigative hearing a person is required to answer questions put

by the Attorney General even if the answers would incriminate them. However theinformation or evidence derived from it, may not be used against the person in a

criminal proceeding. Persons have the right to have a lawyer available at any stage

of the proceedings.

17. In respect of incitement or fomenting terrorism, the Criminal Code contains

provisions on incitement to hatred but these have not been used in the counter-

terrorism context as yet.

18. The Government of Canada has signed and ratified all 12 UN Conventions and

Protocols relating to terrorism and has ratified a number of international human

rights treaties, including the ICCPR and the CAT. Furthermore, although Canadais not a signatory to the American Convention on Human Rights (ACHR),

Canadian citizens retain a right to file a complaint under the ACHR.

19. Canadian citizens are allowed to acquire a foreign nationality without losing their

Canadian citizenship. Canadian citizenship can only be revoked on grounds of

misrepresentation, for example, if it was obtained by fraudulent means.

20. Canadian law permits the detention and deportation without any criminal

conviction in Canada of non-Canadian citizens based on certain grounds

prescribed in the Immigration and Refugee Protection Act (IRPA: Section 77-85),

including security, war crimes and organised crime. The ability to detain or deport

non-Canadians under a certificate process was first introduced in 1978 as part of

Canadian immigration law. Under IRPA, the Minister of Public Safety and

Emergency Preparedness and the Minister of Citizenship and Immigration can

sign certificates in respect of protected persons and other non-Canadians who pose

a security threat. The certificate process is only issued when there is sensitive

information, usually provided by the Canadian Security Intelligence Service

(CSIS), which needs to be protected for reasons of national security or the safety

of any person. Intelligence information must be both reliable and supported by

sufficient open-source information.

21. The certificate process authorises the detention of non-citizens pending removal.

An initial review of detention must take place within 48 hours, then subsequently

every six months. In the case of a non-protected person, detention is mandatory

while the reasonableness of the certificate is being determined. In the case of a

protected person, the Minister must sign a warrant of arrest and detention of the

person named in the certificate. However, they are free to leave Canada at any

time. During the Federal Court proceeding, the person named in the certificate, if

eligible, may make an application for a pre-removal risk assessment (PRRA) to

assess whether they face any risk in the country to which they will be deported.

On request, the judge will suspend the proceeding in order for the Minister of

Citizenship and Immigration's delegate to make a decision on the PRRAapplication. The Federal Court judge will then resume the proceedings and will


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determine the lawfulness of the PRRA decision together with the reasonableness

of the certificate. If a certificate is determined to be reasonable this constitutes a

de facto removal order. There is no right of appeal to the determination of the

judge on the reasonableness of the security certificate or the PRRA.

22. IRPA does not contain any legal provision authorising indefinite administrativedetention. Individuals are primarily detained while the Federal Court reviews the

reasonableness of the certificate. Where the Federal Court finds the certificate

reasonable, the authority to detain continues. However, the individual may apply

for release from detention if they are not removed within 120 days after the

certificate has been found reasonable.

23. Certificates have been directed at a broad range of subjects including those alleged

to be terrorists. In total, 27 certificates have been issued since 1991. Of these 27

certificates, three were quashed by the Federal Court. There are currently six

detainees, two of whom have been allowed bail by the Federal Court (one under

strict conditions including electronic tagging). Canada would not generally allowan individual to be deported to a country where they might face torture (see case

study).

Case Study: Suresh v Canada

In Suresh v. Canada (Minister of Citizenship and Immigration) 2002, the Supreme

Court of Canada reviewed the decision to deport a Sri Lankan refugee (and a member

of the LTTE). The Court had to consider whether the provisions in the Immigration

Act that allow the Minister to deport individuals who are considered a threat toCanadian security are constitutional and, in particular, whether they violated the

principles of fundamental justice set out in the Canadian Charter of Rights and

Freedoms. The Supreme Court held:

We do not exclude the possibility that in exceptional circumstances, deportation to

face torture might be justifiedInsofar as Canada is unable to deport a person where

there are substantial grounds to believe he or she would be tortured on return, this is

not because article 3 of the Convention Against Torture directly constrains the actions

of the Canadian Government, but because the fundamental justice balance under

Section 7 of the [Canadian] Charter [of Rights and Freedoms] generally precludes

deportation to torture when applied on a case by case basis. We may predict that itwill be rarely be struck in favour of expulsion where there is a serious risk of torture.

However, as the matter is one of balance, precise prediction is elusive (para 78).

What amounts to exceptional circumstances has not been explored further.


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FRANCE

24. France operates a civil law legal system under which the French Constitution of 4

October 1958 is the founding text. The preamble of the Constitution refers directly

and explicitly back to, amongst other things, the Declaration of the Rights of Man

and the Citizen of 1789. France is a dualist system, requiring domestic legislationto give effect to international treaties.

25. Acts of terrorism are a criminal offence and are set out in Articles 421-1 et seq. of

the Penal Code (as amended in Law 96-647 of 22 July 1996). The offences which

constitute acts of terrorism are those which are committed intentionally and

undertaken by an individual or collective with the purpose of seriously disturbing

the public order through intimidation or terror by means of:

wilful attacks on life, wilful attacks on the physical integrity of persons,

abduction, hijacking of planes or vessels, theft, extortion, destruction,

defacement and damage, and also computer offences;

the production or keeping or sale or transport of machines, dangerous or

explosive devices or substances;

the detention, carrying and transport of weapons and ammunition;

offences related to the prohibition of the designing, production, keeping,

stocking, purchase or sale of biological or toxin-based weapons;

financing a terrorist organisation;

introduction into the environment of any substance liable to imperil human

or animal health or the natural environment with the aim of seriously

disturbing public order through intimidation or terror;

money laundering or insider trading relating to terrorist activities;

being unable to account for resources corresponding to ones lifestylewhen habitually in close contact with a person or persons who engage in

terrorist activities.

26. In 1986 a section within the Trial Court of Paris of prosecutors and examining

magistrates (juges dinstruction) was created, which specialises in cases of

terrorism. A local prosecutor decides whether a crime committed in his area of

responsibility is related to terrorism and if so, refers the case to the special section

of the Paris Court. There the examining magistrate conducts an investigation to

determine whether there is a case to send to trial. The examining magistrate is

empowered to carry out a wide range of acts. These may be delegated to the police

authorities where appropriate. The prosecution, suspect and victim/civil partiescan request that the examining magistrate carry out particular investigative acts,

and can appeal against a refusal to do so. Once the investigation and examination

are complete, the examining magistrate decides whether there is enough evidence

to send the case for trial. The prosecutor and civil parties can appeal against a

decision not to send the case for trial.

27. In practice, the creation of the special counter-terrorism section of the Paris court

has led over time to the establishment of a specialised and expert corps of counter-

terrorism magistrates. This system also facilitates close working between

investigating magistrates and the domestic French intelligence agency, the DST.

The latter has a dual role as both intelligence agency and a judicial police force

that can be placed under the authority of such a magistrate.


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28. France has introduced a number of laws since 1986 including, for example, laws

on interception of electronic communications (Law no 91-646 as amended), use of

video surveillance (Law no 95-73), biometric checks (Decree no 2005-556) and

the introduction of a computerised database holding data files on individuals.

29. In the wake of terrorist attacks in the mid-1990s Law Number 96-647 of 22 July

1996 determined conspiracy to commit terrorist acts to also be a terrorist act. This

builds on the codification of broader criminal conspiracy offences (association de

malfaiteurs). Together they allow for investigating potential terrorist activity

through the targeting of logistics networks that support terrorists.

30. Following the attacks of 11 September 2001, the statutory provisions seeking to

prevent money laundering were extended to the fight against financing of

terrorism. There exist a number of national structures designed to counter money

laundering as it relates to terrorist finance. These include the Cell for the

repression of serious financial delinquency (OCRGDF), the Cell for treatinginformation and action against clandestine financial networks (TRACFIN) and the

Cell for the fight against financing of terrorism (FINATER). The Monetary and

Financial Code provides that a Declaration of suspicion must be made whenever

funds may be used for the financing of terrorism. This obligation lies upon

credit establishments, financial institutions, insurers, notaries, real estate agents,

avocats (in the context of their advisory activities), avous, auditors, official

auctioneers, sellers of works of art, of antiques, and of precious stones, the legal

representatives and managers of casinos, and welfare insurance institutions.

31. Under the Criminal Code of Procedure many of the same rules apply to terrorist

cases as to other criminal cases. For example the time limits for pre-trial

detention for terrorist offences (other than certain conspiracy offences) are the

same as for other serious offences: up to 2 years pre-trial detention for crimes

punishable by 10 years imprisonment or less and up to 4 years detention for

crimes punishable by more than 10 years imprisonment.

32. Exceptions for terrorist offences are made under the Code of Criminal Procedure

in relation to initial custody, pre-trial detention for certain conspiracy cases,

searches and the limitation period. It is possible, for example, to extend initial

custody time limits to those being questioned in relation to a terrorist act. The

normal custody period of 48 hours can be extended by two further periods of 24hours. The extensions must be necessary for the purposes of the enquiries and

must be authorised by a judge. The person held in custody may only speak with a

lawyer after 72 hours. The lawyer may not make known that such a meeting took

place to any third party throughout the duration of the custody. This obligation is

not limited to the derogation relating to matters of terrorism and has already given

rise to criminal sanctions for lawyers who have breached this provision.

33. From 9 October 2004, under LawPerben II, certain types of covert investigative

methods in the investigation of organised crime and terrorism are permitted.

These include undercover officers, listening devices and controlled deliveries.


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34. France is party to a wide range of terrorism-related international treaties including

the European Convention on the Suppression of Terrorism, the International

Convention against Hostage Taking, the International Convention on the

Suppression of Terrorist Attacks with Explosives and the International

Convention on the Suppression of the Financing of Terrorism. France is also a

party to international human rights treaties including the ICCPR and the CAT.

35. Law no. 96/647 of 22 July 1996, brought in to reinforce prevention of terrorism,

provides the possibility for removal of French nationality to be pronounced

against any person who had acquired such nationality and who has been convicted

of an act of terrorism. The removal of nationality is ordered by the administrative

authority, in this case the Prime Minister, upon a decree taken after advice of the

Conseil dEtat. It can only be ordered if the acts of terrorism have been committed

within ten years of acquisition of French nationality or before such acquisition is

granted. Such a decision can be challenged by appeal to the Conseil dEtat.

Removal of nationality does not constitute a criminal sanction ordered by a Court.

36. Expulsion from French territory is governed by Law no. 45/2658 of 2 November

1945, as subsequently amended. Expulsion of a non-French citizen can take place

either in the event of a threat to public order made by that individual or on the

grounds of urgent need for the security of the State or public safety. In the event

of an expulsion based on a threat to public order the person concerned is informed

of their expulsion and appears before the expulsion commission, having been

given the opportunity to present their comments. Upon advice from this

commission, the administrative authority, usually the Prefect, takes its decision.

The advice and the administrative decision are then communicated to the person

in question. In the event of an expulsion based on urgent need, the Interior

Minister normally takes the decision. Foreigners who have been granted a long

duration residence permit are still liable to expulsion; foreigners who have been

given political asylum cannot be thus expelled. The courts may order exclusion

from French territory as a sanction against any foreigner found guilty of, amongst

other things, terrorism by a French court and the exclusion may be for life or for a

period of ten years.


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GERMANY

37. Germany has a written constitution, the Grundgesetz (Basic Law). The

fundamental rights in the Grundgesetz, such as the inviolability of human dignity,

cannot be changed even by constitutional amendment. All legislation and

executive application of the law can be reviewed by the Federal ConstitutionalCourt for their constitutionality. The Court can overturn decisions by normal

courts, annul executive decisions and nullify legislation.

38. There is no legal definition of terrorism; terrorist activity (conspiracy, causing

explosions, etc.) is covered by existing laws. In the early 1970s, during the Red

Army Faction terrorist campaign, membership of a domestic terrorist organisation

was made illegal under German legislation (Article 129(a) of the Criminal Code).

The ban now includes membership of, or support for, a foreign terrorist

organisation (Art. 129(b)).

39. The Law on Fighting Terrorism came into force on 1 January 2002. It is not asingle piece of legislation, but rather the title given to an omnibus package of

amendments to pre-existing statutes. These include:

Increased investigative powers for the police, intelligence and security

services, including greater access to personal, financial and immigration

data, broader investigative powers and expanded powers to monitor

resident extremists;

Tougher visa and border control regulations to prevent extremists

travelling into Germany, including introduction of bio-metric data for

passports and visas;

Increased vetting of those in security-sensitive occupations; Greater protection for critical infrastructure.

40. Anyone arrested in Germany must be brought before a judge by the termination

of the day following the arrest. Usually this is within 24 hours, but can be up to

nearly 48 hours. The judge can remand the suspect in custody while the criminal

investigation and prosecution are still underway if there are strong grounds to

suspect that the person apprehended committed the crime, if there is a risk of

flight or if there is danger of interference with witnesses or evidence and the

measure is proportionate to the possible sentence. This also applies to those

suspected of membership of a terrorist organisation (domestic or foreign). The

detention must be reviewed by a judge at the request of the person detained or atintervals each not exceeding six-months. At each stage the prosecuting authorities

need to satisfy the judge that the evidence still warrants the suspects detention.

The stipulations are set out in Art. 112 130 of the Code of Criminal Procedure

(StPO).

41. Intelligence is admissible as evidence in connection with a defined list of serious

crimes, which includes terrorist activities. However, the protection of privacy of

mail and telecommunications, as set out in Art. 10 of the Constitution, places

limits on interception. These limits are set out in two separate laws: the so-called

Article 10 law and the code of criminal procedure. The former regulates

intercepts by intelligence services, the latter their preconditions and their use incriminal proceedings.


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42. Under the Law of Association (Vereinsgesetz), the government can ban

organisations that promote illegality or undermine the constitution. Religious

organisations were exempted from this law, but in one of the first measures

introduced after 11 September attacks this religious privilege was removed. In

the recent past, six organisations and corporations (Hizb-ut-Tahrir, Al Aqsr, YeniAqit, Kalifatstaat, E. Xani Presse- und Verlags-GmbH and Yatim Kinderhilfe)

have been banned from operating under domestic legislation for promoting

extremist views, violence, anti-semitism or sedition. The banning orders cite

either written material produced by the groups or speeches by their leaders as

evidence of their breach of the law. Membership of the group does not amount to

a criminal offence, but all activities, fund-raising, meetings etc. are covered by the

ban and may under certain circumstances become a criminal offence.

Representative offices are closed and accounts frozen. Those organisations

banned under the Law of Association have the right of appeal to the courts. To

date, no appeal has been successful.

43. The Residence Law (Aufenthaltsgesetz), which came into effect on 1 January

2005, tightens the provisions for expulsion and deportation of foreigners. This

Law includes a provision for the exclusion or expulsion of non-German nationals

who undermine public safety and order by inciting hate or violence against

sections of the population, or by denigrating them. This makes hate preaching

grounds for expulsion. The law also allows the authorities to prohibit or restrain

the political activities of foreigners and expel them if they fail to abide by these

restrictions.

44. In German law a distinction is made between expulsion and deportation with

regard to terminating the residence of foreigners. Those who are German by birth

may qualify for another nationality, but this is not stated in law. Those seeking

naturalisation are generally required to renounce their other nationality before they

are granted German citizenship. Should they subsequently reclaim their former

nationality they would by law forfeit their German citizenship. The constitution

states that citizenship can only be withdrawn if the person does not become

stateless as a result.

45. Following an expulsion order a foreigners residence authorisation lapses and he

or she is obliged to leave the country. Deportation involves the actual enforcement

of the obligation to leave the country. Under the Residence Law responsibility forexclusion and deportation falls to the Laender authorities. Unlike in asylum

procedure legislation, in the area of expulsion and deportation full legal process is

instituted under the Code of Administrative Procedure. Exclusion or deportation

is in some cases suspended whilst the individual exercises their right of appeal.

Legal proceedings range from provisional legal protection to principal

proceedings before Administrative Courts, Higher Administrative Courts and the

Federal Administrative Court right through to appeals brought before the Federal

Constitutional Court and the European Court of Human Rights. The individual

can also apply to the Committee against Torture and the Human Rights

Committee


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46. Where expulsion would breach Article 3 of the European Convention of Human

Rights (ECHR) or is otherwise not possible due to their family or personal

connection to Germany then the individual can be made subject to certain

supervision orders (Art. 54 Aufenthaltsgesetz), including a ban from using

electronic communication and/or a requirement to report regularly to the police.

Case Study: Metin Kaplan

Metin Kaplan, leader of Kalifatstaat (Caliphate State), was sentenced by the

competent criminal court in 2000 to four years in prison for inciting members of his

group to murder a rival. The administrative court withdrew his refugee status. Kaplan

remained in prison after his sentence was completed, pending the execution of an

expulsion order. The Cologne court rejected theLandauthorities bid to have him sent

back to Turkey, ruling that there was a risk of torture or the risk that testimonies

allegedly given by witnesses under torture would be used. Kaplan was released on 27

May 2003 and continued to live in Cologne under a supervision order while the Land

government appealed.

The Interior Minister sought to overcome concerns that Kaplan risked torture in

Turkey by seeking formal assurances from Ankara that Kaplan would receive a fair

trial and would not be mistreated in detention. The diplomatic assurances that were

obtained were presented to the court, which agreed to take them into account.

In October 2004 the higher administrative court ruled that Kaplan could await the

appeal against expulsion outside the country. The administrative court stated that

there was no concrete risk of torture in Turkey. That judgement was confirmed by theFederal Administrative Court (BVerwG) after the deportation of Kaplan. He was

immediately re-arrested and flown to Istanbul, where he has since been found guilty

of treason.


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GREECE

47. The Greek legal system is a civil law system. Greece is a dualist system requiring

domestic legislation to give effect to international treaties. In domestic law

Constitutional provisions prevail over any other provision of law.

48. Law 3251/2004 was introduced in July 2004 and amended the first anti-terrorist

law, Law 2928/2001. Under Law 3251/2004 terrorism is defined as: an act

committed in such a way or to such an extent or under such circumstances that it

could seriously damage a country or an international organisation, and is aimed at

inducing fear among the population or forcing illegally any public authority or

international organisation to proceed to any act or to refrain from proceeding to it

or to seriously harm or destroy the fundamental constitutional, political or

economic structure of a country or an international organisation. The law cites 22

types of offences considered as terrorist acts when committed under the above

criteria. These include murder, serious bodily injury, abduction, offences linkedto the possession of explosives or chemical substances, food adulteration, water

poisoning etc. Acts that aim at establishing a democratic regime or at defending

or restoring such a regime as well as acts committed in the exercise of

fundamental civil, political or any other rights provided for by the Constitution or

the ECHR are deemed not to be terrorist acts.

49. Law 2928/2001 states that persons who set up or join structured criminal

organisations with continuous activity, whose aim is to commit a serious crime set

out in that law, were liable to terms of imprisonment of ten years or more,

depending on the circumstances. Association with a terrorist group is punishable

if it takes the form of facilitating its actions in any practical way. Simple ethicalor psychological support is not punishable provided those who have offered it do

not seek any economic or material gain. However, Article 47 of the Criminal

Code provides for the punishment as accessory, at a reduced sentence, of anyone

intentionally providing aid to a person before or during the perpetration of an

unlawful act committed by that person.

50. Law 2928/2001 also introduced a number of provisions enabling the authorities,

subject to specified judicial scrutiny, to infiltrate a terrorist group, control

transport and communications, record terrorist activities by all technical means,

cross-check data of a personal nature and check activities of their accounts at

financial institutions. The law also allows for DNA testing where well-foundedsuspicions about a persons involvement in a terrorism-related crime exist. It also

provides for protection of witnesses or other persons and for measures of leniency

for criminals (including terrorists) who co-operate with the authorities.

51. Other key legislative changes introduced by Law 3251/2004 include:

the leader of a terrorist group is now punishable by at least 10 years'

imprisonment;

acts of terrorism may be committed by a single individual;

some preparatory acts are punishable by at least 10 years imprisonment;

the threat to commit an act of terrorism is an offence punishable by twoyears imprisonment;


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terrorists convicted to terms of life imprisonment must serve at least 25

years of their term before having the right to ask for release;

the statute of limitations for acts of terrorism is extended by Law 3251

from 20 to 30 years, but only regarding terrorism-related offences

punishable by life imprisonment.

52. Under law 2265/1994, jurisdiction over organised crime and terrorist activity was

assigned to a special Judicial Council headed by a Special Prosecutor. The

Special Prosecutor has nation-wide jurisdiction and handles cases of terrorism on

his own or in collaboration with other prosecutors at local level, supervises police

preliminary investigations with special emphasis on coordinating the anti-terrorist

service in the field of investigation and exchange of information whenever more

than one police departments are involved, monitors the investigation procedure

and checks the evidence collected. The Special Prosecutor may liaise with any

other government authority for information and for collecting evidence.

53. A particular branch of the police force, the Directorate for Special Violent Crimes

(DAEV), is responsible for terrorism. An arrest is possible only when a person is

caught in flagrante delictoor under a specially and fully justified warrant or bill

issued by a Judicial Council. However, following the issuing of an arrest warrant

by the competent public prosecutor, arrests can be made by all civil and military

authorities throughout the country.

54. Arrested persons must be brought before the public prosecutor within 24 hours of

their arrest who then refers those arrested to the examining magistrate. Examining

magistrates do not specialise in terrorist crimes; they deal with the full gamut of

crimes.

55. Arrested persons are held, pending trial, until the public prosecutor or any other

competent authority, decides to issue a warrant of temporary imprisonment or a

warrant of release. Arrested persons may appeal against decisions ordering their

temporary imprisonment to the Council of the Court of Misdemeanours within

five days. The five days are not counted from the day of arrest but from the day on

which the warrant was issued. If an appeal is rejected arrested persons may beheld for a period of up to 12 months and, under extraordinary circumstances, 18

months. Extraordinary circumstances are considered to be established if the

Council of the Court of Appeals issues a specifically reasoned decision on the

subject.

56. Regarding criminal procedure, the main investigation of terrorism-related crimes

is conducted under the supervision of the Council of Judges of Appeal. Following

the conclusion of the main investigation, the file is forwarded to the Appeal

Prosecutor who submits it together with his recommendation to the Council of

Judges of Appeal. Similarly, terrorism-related trials are conducted by a Court of

Appeal, i.e. a three-member senior court for the hearing of felonies, whose

members are Judges of Appeal. As in other felony cases there is no jury.

57. Greece is a signatory to the ECHR, the ICCPR and the CAT.


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58. Where an individual holds dual nationality their Greek citizenship can be revoked

on grounds of national security/national interest. The state authorities are

responsible for determining what amounts to national security or the national

interest. This provision is rarely used. If such a decision is taken it affects only

the person concerned and does not extend to family members.

59. Deportation of non-Greek citizens is permitted if they have been convicted of a

freedom-depriving sentence of at least one year or, irrespective of the severity of

the sentence, if they have committed crimes against the form of government,

treason, crimes regarding drugs, legalisation of income from illegal activities and

a number of other offences. Competent authorities may suspend deportation when

this is dictated byforce majeure, humanitarian considerations or when some other

exceptional reasons exist regarding the individuals or his/her familys life or

health.

Case Study: The November 17 trial

The effectiveness of counter-terrorism legislation was tested during the investigation

and subsequent trial of 19 alleged November 17 (N17) terrorists arrested in the

summer of 2002. The trial took place from March to December 2003 and was the

first to be conducted under the new legislation. Of the 19 defendants, 15 were

convicted of a number of crimes, including creating and participating in a criminal

(terrorist) organisation, murder, bodily injury, robbery, explosions, possession of

explosives etc. Alexandros Giotopoulos, the alleged leader of N17, was sentenced to

21 terms of life imprisonment plus a further 25 years imprisonment for committing

more than 200 terrorist offences. Another leading member, Costas Koufontinas, was

sentenced to 13 terms of life imprisonment plus 25 years. All of those convictedreceived the maximum sentence for their respective offences.

Many also had their enjoyment of certain civil rights suspended. The suspension

could result in the loss of (or inability to acquire) elected, public or other communal

office or the loss of any rank or position in the armed forces. Amongst other things

the suspension would mean that the individual would not be able to act as a member

of a jury or be employed as an expert by public authorities. Those who were

sentenced to life imprisonment received suspension of their civil rights for life

(subject to a right of appeal or an application to have the suspension withdrawn after 5

years).


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ITALY

60. Italian law is rooted in the 1948 Constitution. Legislation is decided upon by

Parliament and the Senate and formally promulgated by the President and may be

subject to constitutional scrutiny by the Constitutional Court. Legislative

provisions found by the Constitutional Court to be incompatible with the

Constitution are repealed and must be amended.

61. The definition of terrorism in Article 270 bis of the Italian Penal Code has been

widened by Law 155/2005, which came into force on 2 August 2005, and includes

promoting, constituting, organising, managing or financing organisations which

intend to carry out violent activities, or assisting any individual (excluding a close

relative) who participates in such organisations. It also includes enrolling or

training individuals to carry out violent activities if, in view of their nature or

context, such activities might cause grave harm to a country or international

organisation, and are intended to intimidate the population or to constrain thepowers of the state or international organisations to carry out or not carry out any

activity, or to destabilise or destroy fundamental political, constitutional,

economic and social structures of a country or of an international organisation.

This includes foreign states and international organisations or institutions. This

definition is in addition to other acts defined as terrorism or as carried out for

terrorist purposes in international conventions or laws to which Italy is bound.

62. Law 438 of 15 December 2001, on Urgent Measures Against International

Terrorism, extended the provisions of Art. 270 of the Penal Code to cover

international terrorism. Art. 270 bis provides for a term of imprisonment of

between 7 to 15 years for individuals found to promote, constitute, organise, leador finance organisations which promote violence for terrorist ends or to upset the

democratic order. It also provides for imprisonment of 5 to 10 years for

individuals who associate with such organisations. Art. 270 tris provides for

imprisonment for up to 4 years for those harbouring or assisting terrorists, with the

exception of close relatives.

63. Law 438/2001 and Law 155/2005 give the police and other investigating

authorities increased powers to pursue terrorists. These permit, for example, the

authorities to make use of false identities or receipt of money or drugs, subject to

safeguards. They also allow the interception of communications by law

enforcement agencies where necessary to gain information for the prevention ofterrorism. The maximum period of interception permitted by the Procurator is 40

days, which may then be extended for further 20-day periods. There must be clear

justification of the need, and the information so acquired can be used only for

investigative purposes, not in criminal proceedings.

64. Law 155/2005 strengthened the provisions in Law 438/2001. Notably, Art. 2 of

the Law enables the discretionary granting of one-year renewable (and also

rescindable) residence permits, or full residence permits, to illegal foreigners who

collaborate with the authorities. The existing law pertaining to Italian residence

permits for foreign nationals was updated to provide for compulsory electronic

cards containing information on the individual.


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65. The Law gives the Interior Minister new powers to control the movement and sale

of certain types of detonator and explosive. Those who unlawfully instruct in the

use of explosives or other dangerous substances, including over the internet, may

be imprisoned for 1 to 6 years. The Minister is also empowered to make licensing

or training of pilots subject to the prior authorisation of the Chief of Police for six

months to two years while the latter verifies that there are no contra-indicationsfor public or state security.

66. New provisions for identification of individuals include authorisation to take

samples of saliva or hair for DNA testing without consent in cases of suspected

terrorism, with the caveat that the dignity of the individual must be respected.

Suspects may also be held for up to 24 hours without access to a lawyer to enable

identification to be verified. Those using false documents may be imprisoned for

1 to 4 years, longer if they help others to use false documents.

67. Law 438/2001 made the confiscation of assets of convicted terrorists obligatory

when the assets were destined for use in the commission of crimes or were theprofit, product, price or work of crime.

68. Italy does not maintain a separate national list of terrorists or terrorist

organisations, but enforces the EU and UN lists.

69. Provisions originally developed in the context of legislation dealing with illegal

immigration allow for the expulsion of foreign nationals under Italian law. Italy

permits dual nationality and once a non-Italian has acquired Italian citizenship it

can only be revoked where the individual accepts public or military service for a

foreign State against the express wish of the Italian authorities or bears arms

against Italy.

70. Expulsions of non-Italian nationals have been expanded to encompass terrorism-

related grounds. Legislative Decree 286/1998 as amended by Law 189/2002, Law

271/2004 and by Law 155/2005,specify how expulsions can be carried out. There

are three sets of circumstances under which administrative expulsions are

possible.

71. First, the Interior Minister may order the expulsion of a foreign national - whether

resident in Italy or not on the grounds of a threat to public order or State security

or where there are good reasons to believe that the continued presence of suchforeign national may in any way facilitate terrorist activities or organisations,

including of an international nature. The Prime Minister and the Minister of

Foreign Affairs must be informed prior to the expulsion. This expulsion order

prohibits the expelled person from re-entering Italy for at least five years, and

usually for ten years. In general, such expulsions are permitted when there is

information to show that an individual is a threat to national security but the

evidence is not considered sufficient for prosecution. Individuals have been

expelled from Italy by the Interior Minister following investigations into certain

Islamist groups and reported attendance at training or combat courses.

72. This type of expulsion may be appealed only to the Regional Administrative Courtof Lazio or, if based on Law 155/2005, to the local Regional Administrative


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Courts. The Administrative Courts decision is subject to two further appeals to

the Council of State and, only on points of law, to the Court of Cassation. The

appeal is non-suspensive and the expulsion order is immediately enforceable.

Furthermore, under Law 155/2005, if the information based on which the

expulsion was ordered derives from secret investigations or involves state secrets,

the information may be withheld for two years thus, effectively, suspending theappeal process for that period. Both of these provisions will expire automatically

on 31 December 2007.

73. Second, a Prefect can expel a foreign national not complying with the conditions

under which they were permitted to stay in Italy (for example an expired visa,

working illegally).

74. Third, a Prefect can expel a foreign national if he habitually engages in criminal

activity; lives wholly or in part from the proceeds of crime; behaves in a way that

offends or puts at risk the moral or physical wellbeing of young people, public

health or the public peace; or belongs to a mafia type organisation. Since 2August 2005 a Prefect may also expel a foreign national if he is operating in a

group or alone to carry out criminal acts aimed at subverting the democratic order

of the state.

75. Appeals against an expulsion order made by the Prefect may be made only to the

Justice of the Peace (Giudice di Pace). Such appeals have no suspensive effect on

the expulsion and can also be lodged through Italian consulates overseas.

However, under Law 286/1998, as amended by Law 271/2004, the enforcement of

such expulsion orders must be made through escort orders to the frontier, adopted

by the local Chief of Police, which are subject to prior judicial review by the

Justice of the Peace through a judicial ratification process (convalida). Thus,

within 48 hours of the adoption of the escort order the judge must be informed and

a hearing in the presence of the subject of the escort order and their legal

representative must be held. The judge then ratifies or annuls the order within 48

hours of the hearing. The Constitutional Court has stated in its decision 105 of 10

April 2001 that: it is the very force of the constitutional principle set out in

Art. 13 which imposes interpretation of the control demanded of the judge of the

convalida in its widest sense: a control which cannot stop at the boundaries of

the expulsion proceedings, but which must involve the motives which have

induced the administration to adopt that peculiar executive modality of the

expulsion the escort to the frontier which is the immediate cause of thelimitation of the personal freedom of the foreign national (unofficial

translation). The judges decision is appealable by both the individual and the

State, but only to the Court of Cassation on points of law. Such an appeal is non-

suspensive.

76. The new law 155/2005 states that expulsions ordered for reasons of public order

and security, or involvement with terrorist activity, should be carried out

immediately. The Interior Minister's ability to rapidly expel individuals has been

demonstrated in several cases in August and September 2005.


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77. The 1998 legislation provides explicit protection against expulsion in

circumstances where the individual may be persecuted for reasons of gender,

language, citizenship, religion, political opinions or social conditions, or where

they may risk being extradited to another country where such protection from

persecution may not exist. This reflects guarantees set out in Art. 3 of the Italian

Constitution. The Constitution also guarantees to all individuals, citizens orforeign nationals, the inviolable rights of man (Art. 2), and that the legal condition

of foreign nationals is to be governed by the law, in compliance with international

rules and treaties (Art. 10).

78. The Italians are signatory to the ICCPR and the CAT and allow individual

petitions to their respective human rights monitoring body for both instruments.


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NORWAY

79. Norways 1814 Constitution and 1902 Penal Code form the basis of relevant

domestic counter-terrorism law. Norway has a dualist system, whereby after the

ratification of international treaties further legislation is required to give effect to

them in domestic law.

80. In June 2002 Norway amended the Penal Code with a view to establishing

effective legislative measures against acts of terrorism and the financing of such

acts. The amended section 147a now defines terrorism as a criminal act committed

with the intention of:

seriously disrupting a function of vital importance to society, such as

legislative, executive or judicial authority, power supply, safe supply of

food or water, the bank or monetary system or emergency medical services

or disease control;

seriously intimidating a population; or

unduly compelling public authorities or an intergovernmental organisation

to perform, tolerate or abstain from performing any act of crucial

importance for the country or organisation, or for another country or

another intergovernmental organisation.

81. The amended Penal Code sets out that terrorist acts are criminal and are

punishable by a term of imprisonment not exceeding 21 years and imposes a

maximum sentence of 12 years imprisonment for those who intend to commit acts

of terrorism, co-conspirators and accomplices. The Penal Code also makes it a

serious criminal offence, punishable by up to 10 years imprisonment, to directly or

indirectly finance terrorist acts or make funds available for such financing. Onceagain, accomplices are liable to severe penalty.

82. Norway follows the EU lead on the proscription of terrorist entities, although each

new addition / subtraction is assessed on a case-by-case basis by the Ministry of

Foreign Affairs in close consultation with the Justice Ministry and other relevant

authorities.

83. On 5 August 2005 new laws on police methods to prevent serious organised crime

and terrorism came into force. These include provisions for police surveillance

(including electronic and technical measures) of individuals if there are good

grounds for believing a particularly serious crime is being prepared (including aterrorist act). A court must approve any such surveillance; the hearings are closed

and a security-cleared defence lawyer will be appointed. The defence lawyers are

not informed of their clients name or names.

84. A suspect can be detained for a maximum of 48 hours. If the authorities have

reasonable grounds to suspect a criminal act has been carried out, or has been

attempted, the judge can grant further periods of detention (usually in blocks of

weeks) for further investigation to be pursued. Although the detention is not

confined to a finite period of time, there are a number of requirements for

detention, including a requirement for proportionality, which effectively limits the

time someone may be kept in detention. A suspect can appeal to the regular courtsof appeal.


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85. Norway is a party to all 12 UN Conventions and Protocols relating to terrorism.

The Penal Code requires that the Norwegian authorities immediately freeze any

assets or funds belonging to any person or entity suspected of such acts, as set out

in UN Resolution 1373. Fulfilment of the other relevant requirements of the 1999

Convention for the Suppression of the Financing of Terrorism is also provided forunder Norwegian law.

86. Norway can deport foreign nationals. Dual nationality is possible in Norway but

any citizenship achieved in this way can be revoked on national security grounds.

However this has happened only rarely and is a slow legal process.

87. The Norwegian authorities cannot send foreign nationals to an area where they are

in danger of being persecuted on account of their race, religion, nationality,

membership of a particular social group or on account of their political views.

This is regulated in the 24 June 1988 No. 64 Act concerning the entry of foreign

nationals into the Kingdom of Norway and their presence in the realm(Immigration Act). The Act also states that no-one can be sent to a country

where they risk being sent on to a country where they will face persecution on the

above grounds. Furthermore, the authorities may not expel anyone who is in

considerable danger of losing his life or being made to suffer inhuman treatment.

This means that foreign nationals may also be protected against being returned to

an area where there is a civil war or other violent conflicts. In principle, poverty or

other social hardships will not be sufficient grounds to avoid expulsion. However,

such factors may be important in connection with the evaluation of whether or not

expulsion is disproportionately severe.

88. This approach is also dictated by the various international conventions to which

Norway is party. According to Art. 110C of the Constitution, [i]t is the

responsibility of the authorities of the State to respect and ensure human rights.

Specific provisions for the implementation of treaties hereof shall be determined

by law. Norway has enacted 21 May 1999 No. 30 Human Rights Act to make the

ECHR and the ICCPR, as well as other conventions, directly enforceable into

Norwegian law. The CAT is not covered by this act, but transformed into national

law on different relevant areas of the Norwegian legislation.

89. Exceptions may be made from the protection provisions described above if the

Minister of Local Government and Regional Development determines that anindividual is considered by the Norwegian authorities to be a danger to national

security, or if someone has been convicted by a final judgement of a particularly

serious crime and is therefore a danger to society. The same applies if an

individual has been found guilty of a serious crime outside Norway before they

enter Norway.


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Case study: Mullah Krekar

Mullah Krekar (aka Najmuddin Faraj Ahmad) is the former head of the Northern Iraq-

based Ansar al-Islam terrorist organisation. He was granted political asylum and

awarded a Norwegian residence permit in November 1991 on the grounds that his life

was in danger in his native Iraq. However, in 2002 he returned to Northern Iraqallegedly acting again with the Ansar al-Islam thus breaching the conditions of his

asylum and residency. In September 2002 he was arrested in the Netherlands on his

return from Iraq and, on his release in January 2003, sent back to Oslo. In February

2003 the Norwegian Government decided to deport Krekar and he was arrested a

second time in March when they revoked his residency permit and travel / asylum

documents.

Apart from the residency offences he was also charged with incitement to commit

terrorist attacks against US troops in Iraq, and with the formation of a private militia

in Northern Iraq. Krekar faced a separate extradition request from Jordan on drugs

charges. The Norwegian courts found insufficient evidence to support any of these

charges and released him in April, despite a police appeal. However, the Government

continued to collect information in support of a retrial. In June and October 2003 the

formation of a militia charge and incitement charge respectively were officially

dropped against Krekar through lack of admissible evidence. In November the

Norwegian courts rejected the Jordanian extradition request.

In January 2004 Krekar was re-arrested a third time and charged with the criminal

offence (as opposed to the previous asylum and terrorism offences) of attempted

murder in Northern Iraq (in the spring of 2002). He was released from custody six

weeks later though the authorities continued to withhold his travel documents. In June2004 this criminal case was dropped and Krekar now only faces the deportation order

against him based on his illegal return to Northern Iraq in 2002 whilst claiming

refugee status in Norway. This case continued in July 2005 with key officials

testifying that he also represented a threat to national security due to his influence

over religious fundamentalists. No decision has yet been reached.


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SPAIN

90. Spain has a civil law system based on the Napoleonic Code. The basis of the

Spanish legal order is the Constitution of 1978. Spain has a monist legal system

and the Constitution provides that validly concluded international treaties, once

officially published in Spain, shall be part of the internal legal system. Art. 10(2)stipulates that provisions relating to the fundamental rights and liberties

recognised by the Constitution shall be construed in conformity with the Universal

Declaration of Human Rights and international treaties and agreements therein

ratified by Spain. The Constitutional Court can strike down laws inconsistent

with the Constitution and hear appeals if constitutional rights are breached. These

include the right to freedom, procedural guarantees governing detention, right to a

fair trial, prohibition on torture and the death penalty. Citizens who claim that

their rights under detention have been breached may also take their case to the

Peoples Advocate (Defensor del Pueblo).

91. Spain does not have specific anti-terrorism laws. The general approach is to treatterrorism as an aggravated form of crime. Terrorism-related offences are set out in

the Penal Code and procedural provisions in the Law of Criminal Procedure. The

Penal Code states that an act constitutes a terrorist offence where the purpose of

the act is to subvert the constitutional order or to effect serious disturbances of

public order.

92. After the 11 March 2004 terrorist attacks in Madrid, legislative changes largely

focussed on greater controls on the use and transportation of explosives. Since the

attacks, the crime of conspiracy to commit acts of terror has been used to charge

suspects whose planning was disrupted before an attack could be carried out.

Offences of financing terrorism and glorifying terrorism (Penal Code, Art 571-

580) have also been used to disrupt terrorist support networks.

93. In terrorist and organised crime cases, there are a number of adaptations of normal

procedures. In the first instance all cases are heard at the National High Court

(Audiencia Nacional) and the investigating magistrate is an officer of that Court.

The High Court has special security features, the staff are experienced in terrorist

cases and the Court has developed detailed jurisprudence (particularly on ETA

cases).

94. In terrorist cases, the judge may order that suspects be held incommunicado ifthey have grounds to believe that knowledge of the suspects detention would

prejudice the investigation. This involves a limitation of detainees rights in two

ways: relatives may not be informed of the detention, and legal assistance is

provided by a duty solicitor, not a lawyer of their own choice. All other rights,

including habeas corpus, continue to apply. The initial incommunicado order is

valid for 72 hours following arrest. It can be prolonged for a further two days

upon the authority of the investigating magistrate. After this period the

investigating magistrate must decide whether to commence criminal proceedings.

If so, the investigative magistrate may order preventive detention, at which point

the suspect is transferred from police custody to judicial custody (prison). At this

point, he may extend the incommunicado period by five days, exceptionallyfollowed by a final period of three days. Thus, it is possible for a person against


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whom criminal proceedings have begun to be held incommunicado for up to 13

days.

95. While the detainee is held incommunicado in police custody, he may be

questioned in the presence of the duty solicitor (not a lawyer of his own

choosing), who is called in immediately on arrest. The lawyer may advise theirclient on procedural matters, but may not consult privately with the suspect. A

forensic doctor examines the detainee to ensure that they are not physically

mistreated and sends a report to the judge. Within the incommunicado period of

detention, the suspect is transferredto the judge at the National High Court whohas three days in which to hold a judicial interrogation. If the judge thinks there is

a case for prosecution, criminal proceedings begin and the suspect is transferred to

judicial custody; if not, the detainee is released. The judge must issue a reasoned

judgement justifying his decision to begin criminal proceedings and any extension

of the incommunicado period. Once in judicial custody, the detainee has the right

to be seen by a second court-appointed forensic doctor and continued legal

assistance. He may only have access to a lawyer of his own choosing once theincommunicado period has ended.

96. When a person has been charged and held in judicial custody, the period of

preventative detention may last two years if the penalty for the offence is

imprisonment of three years or more. Where circumstances exist that mean that

the matter may not be tried within two years, the court may order one extension of

up to a further two years. If the defendant is convicted and the sentence is under

appeal, the period of custody may be extended for up to half of the sentence

imposed. In practice, therefore, investigating magistrates have up to four years

during which they can keep a terrorist suspect in detention and prepare the case

for trial, although the defendant must be tried within the four year period.

97. Where an offence is committed that has a terrorist purpose then this will be

considered an aggravating feature by the court when it imposes a sentence.

However, there are some specific penalties in the Criminal Code that relate to

terrorism, including:

promoting or directing armed gangs or terrorist organisations: eight to

fourteen years imprisonment;

membership of an armed gang or terrorist organisation: six to twelve years

imprisonment;

terrorist murder: twenty to thirty years; the effective maximum prison sentence for a person convicted of two or

more terrorist offences is now 40 years.

98. Spain follows the EU common lists for proscribed organisations.

99. Spain is a signatory to the ICCPR, the CAT, the European Convention for the

Prevention of Torture and Inhuman or Degrading Treatment or Punishment and

the Council of Europe Convention on the Prevention of Terrorism.

100. Spain permits dual nationality and it is not possible to revoke Spanish nationality

from a citizen who is thought to present a threat to national security.


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101. The Spanish Aliens Act 4/2000 Art. 57 (read with Arts. 53 and 54) provides for

deportation of a non-Spanish national when that person has participated in

activities prejudicial to the external security of the state, foreign relations or in

activities contrary to public order specified in the Protection of Public Safety

Law 1/1992 Art 23. These activities specified are: possession of explosives and

arms when not amounting to a criminal offence, failure to keep arms andexplosives safely, unauthorised public meetings and demonstrations, refusal to

disperse at such meetings, unauthorised public entertainments, performing actions

which could provoke public disorder, permitting consumption of drugs in

premises open to the public, failure to observe speed boat restrictions, provision of

false materials to obtain identity documents where not otherwise criminal,

obstruction of searches and controls provided for by law, creating public disorder

or damage where not otherwise criminalised, running a business without the

required license, repeat offending (albeit of a minor nature).

102. The appropriate authority, generally Police competent for immigration matters,

may seek deportation orders. The decision to grant the order is made by a seniorgovernment official in the region where the individual was taken into custody

(Delegado or Subdelegado del Gobierno), acting under the authority of the

Minister of the Interior. The subject has the right to comment on the draft

deportation order and submit documents refuting the grounds on which it is based.

He has the right to assistance from a legal adviser and an interpreter. Once

finalised, the order may be appealed, either by a request for reconsideration by the

administrative authority that issued it, i.e. the regional government official, or

through the courts.

103. Deportations may be authorised under one of two procedures: the ordinary or fast-

track procedure. The latter may be applied to foreign nationals accused of having

participated in activities contrary to Spanish national security or public order as

set out in Art. 54, 1(a) of the Aliens Act. The fast track significantly reduces the

duration of proceedings and determines that any appeal is non-suspensive. The

only way to suspend a fast-track deportation is for the deportee to claim asylum.

The asylum authorities may refuse to consider an asylum claim if it is judged

manifestly unfounded, including if they judge it was entered only as a delaying

tactic.

104. The ordinary procedure (Reglamento 2393/04, Arts. 122-129) is used for less

serious immigration breaches. A report is drawn up containing details of theperson, breach, proposed sanction and preventative measures to be taken. The

foreign national has 15 days to reply and propose a defence. There is a further

period of between 10 and 30 days to conduct any enquiries which the immigration

officer deems appropriate. A draft order is then drawn up to which the foreign

national has 15 days to reply. There need not be a hearing when all issues have

effectively been covered in writing. The senior official who is to decide the issue

may seek further information from the parties, which have seven days to raise any

matters they consider relevant. Enquiries on such matters must be completed

within 14 days, and the ruling made within a further 10 days. If the senior official

considers that the breach is more serious than previously thought, he can notify

the foreign national who has fifteen days in which to comment. There is provisionfor appeal by judicial review.


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105. The procedures forfast trackdeportations are set out inReglamento2393/04. In

fast track cases the police arrest the subject and initiate deportation proceedings by

applying to the administrative authority (the regional government officer). The

foreign national must be brought before a court if he is to be remanded for longer

than 72 hours. The judge may order his detention in an internment centre pendingdeportation for up to 40 days. The individual is legally represented both at the

internment hearing and when the administrative procedures are followed. He has

48 hours to comment on the draft notice. If he comments, the investigator decides

whether the comments have substance and if so arranges for enquiries to be held

within three days. An investigators decision to proceed is notified to the deportee

who has 48 hours to prepare any documents he wishes to rely on. The competent

authority, generally a senior government officer in the region, then decides on the

basis of the papers whether or not to approve the deportation. Since deportation is

classified as an administrative sanction, the only role for the judicial authorities is

to decide whether there are grounds for internment. Judicial review of an

administrative deportation is possible, following an appeal by the deportee. Theappeal does not in itself have suspensive effect and should normally be lodged at

the Spanish consulate in the country to which the individual is returned.

106. However, deportation proceedings can be suspended if the detainee claims

asylum, since the latter procedure takes precedence over deportation. As a result,

if asylum is claimed deportation proceedings must stop until a decision is taken as

to the admissibility of the claim. If the claim is judged unfounded, deportation

continues. Spanish law does not allow the deportation or extradition of an

individual who would face the death penalty in his country of origin.

107. Spanish courts have addressed ECHR Art. 3 issues in the context of extradition,

asylum and deportation cases, although not of fast-track deportations. Art. 3 issues

are often addressed by reference to Art. 15 of the Spanish Constitution, which

states: Everyone has the right to life and to physical and moral integrity, and

under no circumstances may be subjected to torture or to inhuman or degrading

punishment or treatment. The death penalty is hereby abolished, except as

provided for by military criminal law in times of war. Several extradition cases

have reached the Constitutional Court, which draws on the ECHR and domestic

jurisprudence. One recent case concerned a Kurd who successfully appealed

against an order for extradition to Turkey on the grounds of likely ill-treatment

(STC 32/2003). From this and other cases, the principles that guide a Spanishcourt are:

the applicant must provide specificmaterial which shows a risk to himself,

not generic assertions;

courts should bear in mind that an applicants ability to provide

information is often limited by his being away from his country of origin;

the applicants arguments cannot be refuted by the sole fact that his

country is a signatory to a human rights instrument;

being a signatory may be sufficient to reject generic but not specific

allegations of possible torture;

Courts have a duty to consider the material presented by the applicant and

to make reasonable enquiries based upon it;


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Substantial grounds for believing that there is a risk of torture is sufficient

to bar extradition, as Spain is bound by Art. 3 of the CAT;

Certain assurances may be considered sufficient (e.g. no death penalty,

limits to the concept of life imprisonment). However, a simple assurance

that torture would not take place is insufficient.

108. Similar principles apply to cases where criminals sentenced to less than 6 years

imprisonment are ordered to be deported under Art. 89 of the Criminal Code, and

in asylum cases. The courts may take into account information provided by

Spanish Embassies overseas and the Interministerial Asylum Commission when

deciding on the dangers of persecution in a particular country.


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SWEDEN

109. Sweden has a civil law system. The Swedish Constitution requires that all

domestic law is in conformity with the ECHR. Otherwise, Sweden is a dualist

legal system and requires domestic legislation to give effect to internationaltreaties.

110. The 2003 Act on Criminal Responsibility for Terrorist Offences states that a list of

offences under Swedish law including murder, manslaughter, gross assault,

kidnapping, the spreading of poison or contagious substances amount to a terrorist

offence where the act in question might seriously damage a state or an

intergovernmental organisation and the intent of the act is to:

seriously intimidate a population or a group of population;

unduly compel a public authority or an intergovernmental organisation to

perform an act or abstain from acting;

seriously destabilise or destroy fundamental political, constitutional,

economic or social structures in a state or in an intergovernmental

organisation.

If it is not possible to prove special intent, regular criminal law in the Penal Code

is applicable. Any attempt, preparation or conspiracy to commit a terrorist offence

or failure to disclose such an offence is also deemed an offence under this Act.

111. The 2002 Act on Criminal Responsibility for the Financing of Particularly Serious

Crimes implements the International Convention for the Suppression of the

Financing of Terrorism and establishes the criminal responsibility of anyone whocollects, provides or receives funds or other assets with the intention that they

should be used or in the knowledge that they are to be used in order to commit

particularly serious crime

112. Dual nationality is permitted in Sweden and Swedish citizenship cannot be

removed. Under the Aliens Act (1989:529) the police or the Migration Board

(depending on the length of time an individual has been in the country) may issue

an expulsion order against a non-Swedish national. The police may refuse an alien

entry within three months of arrival in Sweden if, for example, it transpires that he

- on entry - either avoids supplying the police authority with particulars requested,

or deliberately supplies the police authority with incorrect particulars which havea bearing on his right of entry to Sweden, or deliberately suppresses any such

circumstance. It is usually the Migration Board that has the power to refuse entry

and the Board always decides on expulsions. An individual can appeal against a

police decision on expulsion to the Migration Board. A decision from the

Migration Board can be appealed to the Aliens Appeals, though it should be noted

that this Board will be replaced by court proceedings at administrative Courts

from 31 March 2006.

113. In asylum cases only the Migration Board or the Aliens Appeals Board (or the

Government in specific cases where the Government takes the place of either

Board) may issue an expulsion order, never the police.


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114. When the Migration Board has rejected an application for asylum and residence

permit and issued an expulsion order in an asylum case, the decision must gain

legal force before it can be executed. Except where the ground for asylum is

manifestly ill-founded, the Aliens Appeals Board must hear an appeal before the

expulsion order can be executed. A decision gains legal force when it is not

appealed against (within three weeks) or when the Aliens Appeals Board hasdecided the appeal case. If the Migration Board has decided that an application is

manifestly ill-founded and that the expulsion order therefore should be executed

immediately, the Aliens Appeals Board must (without delay) decide whether to

suspend the execution order or not when the appeal arrives.

115. The Migration Board or the Aliens Appeal Board can refer a case to the

Government to decide whether to issue an expulsion order. The Act Concerning

Special Control of Aliens allows the Government or National Police Board to

raise the question of expulsion of their own accord (when the procedures set out

below will apply). The referring authority must issue a non-binding opinion of the

case matter. The individual will not necessarily have access to all relevantinformation in the documentation where it is withheld for reasons of national

security. The Governments decision in these cases cannot be appealed, but those

who are expelled can apply for a residence permit again.

116. Where the individual cannot be dealt with under the provisions of the Aliens Act

then he may be considered under the Act Concerning Special Control in respect of

Aliens (1991:572). This Act allows for the expulsion of an alien where it is

necessary for reasons of national security or if, in light of the individuals previous

activities or circumstances, it is feared that he will commit, aid, abet or otherwise

conspire to commit an offence under the Criminal Responsibility for Terrorist

Offences Act.

117. The question of expulsion according to the Act Concerning Special Control in

respect of Aliens can be raised by the National Police Board (Security Services) or

by the Governme